The Arizona Legislature lurched back into action this week, coming together for the first time since March to pass a slate of bills before adjourning. Normally more action (and bills) at the legislature means bad news for taxpayers, but this time there was a very good reason to have lawmakers come back: Covid-19 liability.
After Governor Ducey correctly decided to end the shutdown earlier this month, businesses have been eager to reopen, yet are uneasy on how to do it right. Businesses are very concerned that even with their best efforts to implement policies and procedures that keep employees and customers safe from Covid-19, they are vulnerable to sue-happy trial attorneys and opportunists looking to make a buck on class action lawsuits.
If the state is to recover economically as quickly as possible, the legislature must pass legislation that limits the liability exposure for businesses. Current tort law in Arizona entitles an injured party to damages if they can find the other party was simply negligent in their duties by a preponderance of the evidence, a fairly low evidentiary standard.
Proposed legislation currently being crafted by Senator Eddie Farnsworth and Representative John Kavanagh would likely raise this bar to require a business or non-profit was grossly negligent by clear and convincing evidence. This change would only be applied to suits directly related to the Governor’s Executive Order addressing COVID-19.
Additionally, many Arizona businesses took exception to Ducey’s forceful approach to enforcement, threatening fines and revocation of licenses for violations of his Executive Orders. Any bill that moves forward should either remove or significantly limit the draconian (and often unconstitutional) danger of excessive fines or punishment.
Businesses will undoubtedly do what they can to follow recommended safety guidelines for employees and customers. But if they must contend with the looming anxiety of being sued for a fortune without adequate protections under the law or of having their right to operate their business legally at all, our economy will suffer.
Starting and running a business is inherently risky. Individuals stake their livelihoods on a concept they hope and believe will be successful in the open market. The risk and uncertainty created around COVID-19 has the ability to cripple our job creators. After the forced closures of thousands of businesses in Arizona, many of them will not reopen. For the ones that do step into this brave new world, they must have assurances that a slew of lawsuits or a government crack-down won’t force them to close their doors again, this time for good.
Businesses nationwide have lobbied elected officials to provide liability protection for work done during the pandemic. At the national level, the U.S. Chamber of Commerce has pressured congress to pass federal legislation, and locally the Arizona Chamber of Commerce and Industry has backed the idea of at least some business liability protection.
If passed, the bill would face an uncertain path, as it would be forwarded to the Senate, which voted last week to remain in recess.